Citation Nr: 0415061
Decision Date: 06/10/04 Archive Date: 06/23/04
DOCKET NO. 01-01 647 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for sinusitis.
2. Entitlement to service connection for arthritis of the
lumbar spine.
REPRESENTATION
Appellant represented by: Darla J. Lilley, Esquire
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. M. Ivey, Counsel
INTRODUCTION
The veteran served on active duty from September 1980 to
September 1983 and from September 1990 to June 1991.
This case came to the Board of Veterans' Appeals (Board) on
appeal of a May 2000 rating decision of the Atlanta, Georgia,
Regional Office (RO) of the Department of Veterans Affairs
(VA) in which service connection for sinus problems and
arthritic spurring of the lumbar spine (claimed as back pain)
were denied.
In March 2003 the Board denied the veteran's claims for
entitlement to service connection for sinusitis and arthritis
of the lumbar spine. The veteran appealed to the United
States Court of Appeals for Veterans Claims (Court). In a
December 2003 Order, the Court granted the VA General
Counsel's and Appellant's Joint Motion For Remand. The
Board's decision was vacated and the appellant's claims were
remanded for the Board to provide adequately explain how the
VA had complied with the notice and duty to assist provisions
of the VCAA.
REMAND
In the VA General Counsel's and Appellant's December 2003
Joint Motion For Remand it was stated that a review of the
appellant's claims file disclosed numerous documents
referencing the fact that the appellant's claims file was
lost and rebuilt, and / or that some of his VA medical
records were unable to be retrieved. It was unclear to the
VA General Counsel and the Appellant whether either or both
of these issues were resolved. However, there was direction
from the RO requesting that the appellant be notified of the
problem, and that he be provided an opportunity to supply
copies of any documents he might have in his possession. VA
regulations provide that when it was concluded, after
continued efforts to obtain Federal records, that it was
reasonably certain that the records did not exist, or that
further efforts to obtain them would be futile, VA will
provide the claimant with oral or written notice of that
fact, and that oral notice will be documented. 38 C.F.R.
§ 3.159(e). On remand the RO is to notify the appellant if
any of the records are missing in compliance with 38 C.F.R.
§ 3.159(e). If the issues involving the appellant's claims
file and his VA medical records were successfully resolved,
the RO is to incorporate documentation to that effect into
the claims file.
The Court also directs the RO to provide the appellant with a
VA examination, to include an opinion as to whether the
appellant's nerve damage stemmed from the appellant's back
condition and whether it is attributable to his service in
the Persian Gulf War.
Accordingly, the case is REMANDED for the following actions:
1. The RO is requested to review the
claims file and ensure that all
notification and development action
required by 38 U.S.C.A. §§ 5102, 5103,
and 5103A (West 2002) are fully complied
with and satisfied. See also the
Veterans Benefits Act of 2003, P. L. 108-
, Section 701; 38 C.F.R. § 3.159 (2003).
2. The RO is asked to notify the
appellant if any of the medical records
are missing in compliance with 38 C.F.R.
§ 3.159(e). If the issues involving the
appellant's claims file and his VA
medical records are successfully
resolved, the RO is asked to incorporate
documentation to that effect into the
claims file.
3. The RO is requested to provide the
appellant with VA orthopedic, neurologic,
and respiratory examinations. The claims
file must be made available to the
examiners to review in conjunction with
the examinations.
4. The VA orthopedic and neurologic
examiners are asked to indicate in the
examination reports that the claims file
was reviewed. All indicated special
tests are to be performed. The VA
neurologic examiner is requested to
express an opinion as to whether the
appellant's nerve damage stemmed from the
appellant's back condition and whether it
is attributable to his service in the
Persian Gulf War.
5. The VA orthopedic and neurologic
examiners are requested to express an
opinion as to whether it at least as
likely as not that the appellant has a
low back disability that was incurred in
or aggravated by service.
6. The VA respiratory examiner is asked
to indicate in the examination report
that the claims file was reviewed. All
indicated special tests are to be
performed. The VA respiratory examiner
is requested to express an opinion as to
whether it at least as likely as not that
the appellant's sinusitis was incurred in
or aggravated by service, to include
whether it is attributable to his service
in the Persian Gulf War.
7. Following completion of the
foregoing, the RO is requested to review
the claims folder and ensure that all of
the foregoing development actions have
been conducted and completed in full. If
any development is incomplete appropriate
corrective action is to be implemented.
8. If the benefits sought on appeal are
not granted both the appellant and the
appellant's representative should be
provided a SSOC on the issues and
afforded the appropriate opportunity to
respond.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
C. P. RUSSELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).